An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
This section examines the implications for major pieces of federal legislation of any reform to the Divorce Act that moves away from the language of custody and access. It also considers some of the implications of such change at the provincial level. However, the examples in this section are not intended to represent a comprehensive review of all legislation that relies on the language of custody and access. As discussed below, each government would have to undertake a statutory audit of all of its laws that currently rely on the language of custody and access, and examine if and how these laws could or should be brought in line with the new language of post-separation parenting. The objective of this section is to illustrate the complexity of the task at hand, and to suggest some of the options for reform.
A number of federal statutes use the language or framework of child custody and access.
Federal Child Support Guidelines
The Federal Child Support Guidelines in the Divorce Act are based on the designation of custodial and non-custodial parents, insofar as the calculation of child support obligations are based on the income of the non-custodial parent. The Guidelines allow for a deviation from the prescribed amounts in the event of shared physical custody—that is, for when a child lives with the other parent for not less than 40 percent of the time.370
Moving away from the language of custody and access would require a re-evaluation and possibly a reform of these Guidelines. The sustainability of the existing Guidelines depends on whether a new parenting regime resulted in a substantially different allocation of a child’s residential time between the parents. If a new parenting regime simply changed the language of post-divorce parenting, resulted in increased decision-making authority for the non-residential parent or both, the existing Guidelines could be maintained. As long as it is possible to identify a residential parent, with whom the child lives more that 60 percent of the time, the Guidelines would only require a minor terminological change. The reference to physical custody could be changed to that of a child’s residence.
However, if the new parenting regime resulted in a substantial increase in the amount of time a child spends with the non-residential parent, so that it would no longer be possible to identify a residential parent, then the Guidelines would need to modified. If most parenting arrangements came to look like shared physical custody, with the child spending no more than 60 percent of the time with one parent, then existing Guidelines would no longer be sustainable. In a regime in which children spent roughly equal amounts of time with both parents, the Guidelines would need to take both parents’ incomes into account, and would have to be based on a formula different from that of the existing Guidelines.
As discussed above, however, even regimes that have established a presumption in favour of shared parenting have not implemented joint physical custody, and most jurisdictions that have moved towards some form of shared parenting have not witnessed a significant transformation in the allocation of parental responsibility for the day-to-day care of the child. Even in these shared parenting regimes, it continues to be possible to identify a residential parent.
Assuming that the Guidelines themselves were sustainable, the issue that must be addressed is how the statutory language of the Guidelines could be made compatible with the new parenting language of the Divorce Act.
Many of the federal and provincial statutes discussed below that rely on the language of custody and access could be dealt with through a deeming provision—that is, a provision that allowed one parent to be designated as custodian of the child for the purposes of other provincial and federal statutes. However, such a deeming provision would not work in the context of child support; child custody and child support are too closely intertwined. A child’s residential schedule and financial provision are both important aspects of parental responsibility that need to be allocated between parents upon separation and divorce. In addition, child support has proven to be every bit as controversial and contested as child custody. Indeed, in any given parenting dispute, it is often difficult to determine which aspect of parenting responsibility the couple is actually fighting about. A custodial dispute may actually be a dispute over financial responsibility.
At both a principle and practical level, child support is an issue in which a deeming provision would simply be unworkable. Rather, the language of the child support provisions in the Divorce Act would have to be amended. The language of custodial and non-custodial parent would have to be replaced with language that reflected the new parenting regime. The particular way in which this would be done would depend, of course, on the particular terminology adopted within the new regime. However, as discussed, the nature of the existing Guidelines would clearly favour the adoption of a regime that could identify a residential parent.
Further, if the Divorce Act abandoned the language of custody and access and the Guidelines were amended accordingly, and some or all of the provinces did not follow suit, difficulties could arise for separating and divorcing parents who resolved some of their parenting issues under provincial law and then petitioned for divorce. For example, a parent could obtain a custody order under provincial legislation, then petition for divorce and make an application for a child support order under the federal legislation. If custody is not at issue, then the new language and orders of the Divorce Act would have no jurisdiction. The question of child support would have to be determined according to a custody order. Therefore, any change to the language in the Divorce Act would need to reflect that, due to the interaction between federal and provincial legislation in this area of divided jurisdiction, parents with custody and access orders could still make applications for child support under a reformed Divorce Act that had abandoned this language. This is simply one of the many difficulties that would be created if the federal government acted alone in abandoning the language of the custody and access.
The Family Orders and Agreements Enforcement Assistance Act, R.S.C.1985, c.4 (2nd Supp.), allows individuals with family orders to apply to a court for the release of information that will assist in the enforcement of that order. Those family orders include a custody provision (defined as a provision of an order or agreement awarding custody of a child) and an access right (a right, granted in an order or agreement, of access to or visitation of a child).
If the language of custody and access was abandoned in the Divorce Act, this statute could be amended to include a reference to this new language. For example, the definitions of a custody provision and access right could be amended to include a reference to the new language of parenting orders (such as residence or contact orders). As long as some of the provinces continued to use the language of custody and access, it would be important that the new parenting language not replace the language of custody and access, but simply supplement it.
Alternatively, a deeming provision could be included in the Divorce Act that allowed one parent to be designated a custodial parent for the purposes of all other federal law.
International and Interprovincial Child Abduction
The current law on international and interprovincial child abduction is based on the legal concepts of custody and access. If the Divorce Act is reformed, and the language of custody and access is abandoned in favour of either that of parenting responsibility or shared parenting, it will be important to consider the impact on this legal regulation of child abduction.
International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction, 1983 is an international treaty designed to address the removal of a child from one country to a foreign jurisdiction. It is intended to ensure prompt return of a child wrongfully removed or retained and to ensure that custody and access rights under the law of one state are respected in other states.
According to Article 3, the removal or retention of a child is considered wrongful when it is
"in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention," and when
"those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." Generally speaking, wrongful removal refers to the act of taking a child from a person who was actually exercising custody of the child. Wrongful retention refers to the act of keeping the child without the consent of the person who was actually exercising custody.
The Convention provides that a person whose custody rights have been violated by wrongful removal or retention may seek the immediate return of the child (Article 12,29). Access rights are also protected by the Convention but to a lesser extent. Article 21 allows a parent whose access rights have been infringed to receive assistance in securing the exercise of his or her access rights.
Custody and access are defined in Article 5. Rights of custody are defined to include
"rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence." Rights of access are defined to include
"the right to take a child for a limited period of time to a place other than the child’s habitual residence."
The Hague Convention, thus, not only uses the language of custody and access, but also provides different levels of relief on the basis of this language. If the language of custody and access was abandoned in the Divorce Act, the Act would have to specify how the new language would operate for the purposes of the Hague Convention.
Other jurisdictions that have moved away from the language of custody and access have faced similar challenges. In Australia, for example, where the language of custody and access has been replaced with that of residence and contact orders, the Family Law Reform Act contains provisions which make it clear that the provisions of the Hague Convention still apply to Australian parents. Section 111B(4) of the Family Law Reform Act states the following:
s.111B(4) For the purposes of the Convention:
Under the Australian legislation, if both parents have parental responsibility, the abduction of the child by one parent prevents the other parent from exercising his or her responsibilities in relation to the child. Accordingly, parental child abduction involves the taking over of all responsibilities for a child’s care without regard for the other parent who shares those responsibilities.371
The Divorce Act could be amended to include a similar provision. It could provide that
"for the purposes of the Convention," a person with a particular kind of parenting or shared parenting order would be considered to have custody or access. The Act would need to specify which kinds of parenting or shared parenting orders would confer custody rights for the purposes of the Convention, and which kinds of parenting or shared parenting orders would confer access rights for the purpose of the Convention.
Interprovincial abductions are dealt with by the Criminal Code. Section 282 of the Criminal Code prohibits the parent, guardian or person having lawful care or charge of a person under the age of 14 to take that person in contravention of a custody order in relation to that person. Section 283 prohibits a parent, guardian or person having lawful care or charge of a person under the age of 14 to take that person, whether or not there is a custody order, with intent to deprive a parent or guardian or person having the lawful care or charge of the person.
Again, if the language of custody and access was abandoned in favour of parenting or shared parenting responsibilities, some provision would have to be made regarding interprovincial abductions as regulated by the Criminal Code. The words custody order could be replaced with, or (absent a similar change in provincial legislation) supplemented by, the words parenting order. While a parenting order is potentially much broader than a custody order, section 282 only prohibits the taking of a child
"in contravention of" that order.
However, the problem remains for the language of
"lawful care or charge," which, under the current law, would be the status of the custodial parent. The Divorce Act could provide that
"for the purposes sections 282 and 283 of the Criminal Code," a person with a particular kind of parenting or shared parenting order would be considered to have
"lawful care or charge" of the child. The Act would need to specify which kinds of parenting or shared parenting orders would confer this lawful care or charge for the purposes of the Criminal Code.
There are a number of other federal statutes that rely on the concept of custody and access of a child, and that would require consideration if the language of custody and access was abandoned in the Divorce Act.
A number of federal statutes use the language of child custody in relation to the payment of benefits. Where monies are to be paid to a person under the age of 18, several statutes provide that the payment should be made
"to the person having custody and control" of the child.372
The Income Tax Act 1985, c.1 (5th Supp) refers to
"children in the person’s custody" and
"children in a taxpayer’s custody" in setting out how income related to support is to be taxed.
Several federal statutes use the language of
"custody and control" in relation to the rights or obligations of a child’s parent or guardian. For example, the Young Offenders Act defines a parent of a child as
"any person who has, in law or in fact, the custody or control of that person." Similarly, the Royal Canadian Mounted Police Act defines the guardian of a child as
"any person other than a parent of the child who is under a legal duty to provide for the child or who has in law or in fact custody and control of the child."373
Still other federal statutes use the language of custody and control of children to deal with the rights and obligations of institutions, such as child welfare authorities, who have care and control of a child.374 This particular use of custody and control of a child has close parallels within provincial child welfare statutes, discussed in greater detail below.
Reform Options: Changing the Language?
These various federal provisions could not simply be dealt with by replacing the language of custody and access with the new parenting language. Rather, the use of the terminology of custody raises more complex questions and involves the interaction between federal and provincial laws. Any new parenting language adopted in the Divorce Act can only apply to post-divorce parenting. All other parenting (including both unmarried cohabiting parents, married parents and never married nor cohabited parents) continues to be governed by provincial laws. If some or all of the provinces continued to use the language of custody and access in their family laws dealing with children, then the language of custody and control of a child could not be abandoned in any of these federal statutes, since these provisions are intended to apply irrespective of the marital status of a child’s parents.
Consider the statutory provisions that allow the payment of monies to be made to the person with custody and control of the child. These provisions could not simply be replaced by the new parenting language of the Divorce Act, such as the term residential parent. The language of custody and control of the child in these statutory provisions is intended to apply to whomever has the legal rights and responsibilities for a child, married, cohabiting, single or divorced. The term residential parent, however, applies only to post-divorce parenting. As long as the provinces continued to use the language of custody, it would have to be retained in the federal statutes.
It might be possible to add a reference to the new language of parenting to some of these federal statutes. For example, for the purposes of the payment of monies, custody and control of a child could include a residential parent. However, the particular language to be added would depend on a range of factors, and might not be the same for all the statutory provisions. While it might make sense to designate the residential parent as the appropriate recipient of monies, it might make considerably less sense in the context of the Young Offenders Act, when any parent with decision-making authority might be included. Moreover, it is not at all clear that the new language of post-divorce parenting would be at all appropriate in the context of children in institutional care, an issue which is discussed in further detail below.
General Deeming Provision
An alternative approach would be to use a general deeming provision in the Divorce Act that allowed one parent to be designated a custodial parent for the purposes of other federal and provincial laws. Parents and courts could be allowed to identify a custodial parent for the purposes of those provincial and federal laws that require a determination of custody. The Washington Parenting Act includes a provision that allows a designation of custody for the purposes of other state laws. The provision states that
"solely for the purpose of all other state and federal statutes which require a designation or determination of custody, a parenting plan shall designate the parent with whom the child is to reside the majority of the time as the custodian of the child."375 The provision specifically states that
"the designation shall not affect either parents rights and responsibilities under the parenting
plan." The section further provides that in the absence of such a designation, the parent with whom the child is to reside the majority of the time shall be deemed to be the custodian of the child for the purpose of federal and state statutes. Montana, a mandatory parenting plan regime, similarly provides that a final parenting plan may include a
"designation of a parent as custodian of the child, solely for the purposes of all other state and federal statutes that require a designation or determination of custody, but the designation may not affect either parent’s rights and responsibilities under the parenting plan."376
Such a designation provision would be helpful for separating and divorcing parents who were able to agree and, as such, it could be useful as part of a list of provisions that may be included in a parenting plan. However, it might prove to be highly contentious for those parents who are unable to agree on their parenting arrangements. By effectively returning to the language of custodial parent, such a provision would reintroduce the very language that is said to produce parental conflict.
Moreover, as mentioned above, it is not a provision that fits equally well with the various models for reform. In particular, it is not clear that it is compatible with the spirit of shared parenting. The basic idea of a shared parenting regime is that all parenting responsibilities—generally defined as
"all the powers, duties, responsibilities and authority which, by law, parents have in relation to children"—are shared between the parents, except to the extent that a parenting order or parenting plan provides otherwise. The designation provision can be seen to be significantly qualifying this assumption of shared parenting responsibility, by deeming one parent as the custodial parent and, thereby, vesting them with all powers, duties, responsibilities and authority created by those laws that require a custodial parent. A shared parenting regime might then require a more significant revisiting and reformulation of the federal laws that currently
rely on the language of child custody.
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